Retroactivity and Appointments

The current law of retroactivity in the Appointments Clause context is confused, resulting in significant practical consequences, such as when courts unnecessarily invalidate prior administrative decisions after judicially removing an unconstitutionality, even where the prior statutory misrepresentation had no apparent effect on the invalidated actions. The Supreme Court has recently been active in the Appointments Clause area without discussing the attendant retroactivity issues, which lower courts are confronting with increased frequency. This article reviews the doctrine of retroactivity and appointments, discusses the relevant academic literature, and proposes a coherent and sensible framework for courts to use when faced with these important questions.